Brennan Center for Justice v. United States Department of Justice, No. 11-4599 (2d Cir. 2012)

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Justia Opinion Summary

This case arose when plaintiffs submitted Freedom of Information Act (FOIA), 5 U.S.C. 552, requests to defendants for "any and all documents containing guidance" provided by the OLC to any representatives of HHS or USAID "relating to the enforcement" of the pledge requirement purporting to require all organizations that receive funds for HIV/AIDS and anti-trafficking work to have "a policy explicitly opposing prostitution and sex trafficking." Defendants subsequently appealed from the district court's order granting summary judgment for plaintiff, denying defendants' cross-motion for summary judgment. The court ordered disclosure by defendants of three memoranda prepared by the OLC because they were not covered by the deliberative process exemption, 5 U.S.C. 552(b)(5), from the general requirement of disclosure contained in the FOIA. The court concluded that one such memorandum was incorporated by reference in a USAID document such that the protection of the exemption was surrendered, but that the other two were not and retained their exempt status.

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11-4599 Brennan Center for Justice v. Department of Justice 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2012 4 (Argued: February 21, 2012 Decided: September 19, 2012) 5 Docket No. 11-4599 6 ------------------------------------- 7 Brennan Center for Justice at New York University School of Law, 8 Plaintiff-Appellee, 9 - v - 10 11 12 United States Department of Justice, United States Agency for International Development, United States Department of Health and Human Services, 13 Defendants-Appellants.* 14 ------------------------------------- 15 Before: 16 CALABRESI, SACK, and HALL, Circuit Judges. Appeal from a judgment of the United States District 17 Court for the Southern District of New York (Victor Marrero, 18 Judge) granting the plaintiff's motion for summary judgment and 19 denying the defendants' cross-motion for summary judgment. 20 court ordered disclosure by the defendants of three memoranda 21 prepared by the Department of Justice's Office of Legal Counsel 22 because they were not covered by the deliberative process * The The Clerk of Court is respectfully directed to amend the caption as set forth above. 1 exemption, 5 U.S.C. § 552(b)(5), from the general requirement of 2 disclosure contained in the Freedom of Information Act. 3 conclude that one such memorandum was incorporated by reference 4 in a USAID document such that the protection of the exemption was 5 surrendered, but that the other two were not and retain their 6 exempt status. 7 8 9 10 11 We Affirmed in part; reversed and remanded in part. Appearances: DOROTHY HEYL (Elizabeth M. Virga, on the brief) Milbank, Tweed, Hadley & McCloy LLP, New York, New York, for PlaintiffAppellee. 12 13 14 15 16 17 18 SHARON SWINGLE (Benjamin H. Torrance, Sarah S. Normand, Beth S. Brinkmann, Michael S. Raab, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for DefendantsAppellants. 19 20 21 22 23 24 25 Melanie Sloan, Anne L. Weismann, Adam J. Rappaport, Citizens for Responsibility and Ethics in Washington, Washington, DC; David L. Sobel, Electronic Frontier Foundation, Washington, DC; Mark Rumold, Electronic Frontier Foundation, San Francisco, California, amici curiae. 26 27 SACK, Circuit Judge: The defendants, the United States Department of Justice 28 ("DOJ"), the United States Department of Health and Human 29 Services ("HHS"), and the United States Agency for International 30 Development ("USAID"), appeal from a judgment of the United 31 States District Court for the Southern District of New York 2 1 (Victor Marrero, Judge) granting a motion for summary judgment by 2 the plaintiff, the Brennan Center for Justice at New York 3 University School of Law ("Brennan Center"), denying the 4 defendants' cross-motion for summary judgment, and, pursuant to 5 the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, ordering 6 the release of three memoranda prepared by the DOJ's Office of 7 Legal Counsel ("OLC"). 8 of the district court is affirmed with respect to one of these 9 memoranda, and reversed and remanded with respect to the other 10 For the reasons that follow, the judgment two. 11 BACKGROUND 12 In 2003, Congress enacted the two statutes that provide 13 the factual backdrop for this litigation: the United States 14 Leadership Against HIV/AIDS, Tuberculosis, Malaria Act, 22 U.S.C. 15 §§ 7601-7682. ("Leadership Act"), and the Trafficking Victims 16 Protection Reauthorization Act, 22 U.S.C. §§ 7101-7112. 17 ("TVPRA"). 18 requirement," purporting to require all organizations that 19 receive funds for HIV/AIDS and anti-trafficking work pursuant to 20 the statutes to have "a policy explicitly opposing prostitution 21 and sex trafficking." 22 7110(g)(2). 23 24 25 26 Each included what has become known as the "pledge 22 U.S.C. § 7631(f); see also 22 U.S.C. § After the Leadership Act was enacted, the [OLC] . . . warned that applying the Policy Requirement to U.S.-based organizations would be unconstitutional. Heeding that warning, 3 1 2 3 4 5 6 7 8 9 10 [the government] initially refrained from enforcing it against U.S.-based NGOs. OLC subsequently changed course and withdrew what it characterized as its prior "tentative advice," asserting that "there are reasonable arguments to support the constitutionality" of applying the Policy Requirement to U.S.-based organizations, and, starting in mid-2005, the Agencies began applying the Requirement to U.S.-based grantees. 11 Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l 12 Dev., 651 F.3d 218, 225 (2d Cir. 2011).1 13 On July 14, 2005, the Brennan Center submitted FOIA 14 requests to USAID, HHS, and the OLC for "any and all documents 15 containing guidance" provided by the OLC to any representatives 16 of HHS or USAID "relating to the enforcement" of the pledge 17 requirement. 18 14, 2005), Brennan Center v. Dep't of Justice, No. 11-4599, Joint 19 Appendix ("J.A."), at 248 (2d Cir. Jan. 6, 2012); FOIA Request 20 from Brennan Center to OLC at 1, J.A. 270 (July 14, 2005); FOIA 21 Request from Brennan Center to USAID at 1, J.A. 302 (July 14, 22 2005). FOIA Request from Brennan Center to HHS at 1 (July On March 7, 2007, HHS denied the request in its entirety 1 Alliance for Open Society was brought by several organizations, including the Brennan Center, challenging the pledge requirement on First Amendment grounds. We affirmed the district court's decision to preliminarily enjoin that provision of the Leadership Act concluding that it "falls well beyond what the Supreme Court and this Court have upheld as permissible conditions on the receipt of government funds [because it] does not merely require recipients of Leadership Act funds to refrain from certain conduct, but goes substantially further and compels recipients to espouse the government's viewpoint." 651 F.3d at 223. 4 1 and referred it to USAID and the OLC, from which, it had 2 determined, many of the requested documents originated.2 3 denied the original request in its entirety, and denied the 4 request referred from HHS except as to a nine-page letter 5 commenting on the TVPRA that was already in the public record, 6 which was sent in September 2003 from a DOJ official to 7 Representative James Sensenbrenner, then-Chairman of the House 8 Judiciary Committee. 9 request, and denied the original request in its entirety. The OLC USAID did not respond to the referred The 10 Brennan Center appealed the various denials with those agencies, 11 and the agencies affirmed their denials, leaving the Brennan 12 Center with the option of pursuing its claims in federal court. 13 See 5 U.S.C. § 552(a)(4)(B). 14 On October 15, 2009, the Brennan Center brought this 15 action in the United States District Court for the Southern 16 District of New York broadly alleging that USAID, OLC, and HHS 17 had violated FOIA by failing to identify responsive documents, 18 failing to disclose records, failing to disclose reasonably 19 segregable portions of otherwise withheld documents, and, with 20 respect to the OLC and USAID, failing to respond to FOIA 2 HHS located 231 pages of responsive documents, and withheld 46 pages in their entirety pursuant to FOIA's deliberative process exemption, see 5 U.S.C. 552(b)(5). It determined that of the remaining documents, 177 pages originated with the OLC, and 8 pages with USAID, and referred the Brennan Center's request to those agencies. 5 1 requests. On January 15, 2010, the defendants provided the 2 plaintiff with an index of withheld documents as required by 3 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). 4 included the date of each document withheld, the author and 5 recipient(s), a brief description, the number of pages, and the 6 reason for its being withheld. 7 the defendants on April 22, 2010, and May 5, 2010, and asked them 8 to consider disclosing some or all of the documents in order to 9 avoid further litigation. The Vaughn index The district court judge met with In response, the defendants released 10 heavily redacted versions of several documents and associated 11 emails. 12 Civ. 8756, at 1-3 (S.D.N.Y. July 1, 2010), ECF No. 16. 13 extent that internal agency emails and memoranda are referenced 14 in this opinion, they are part of the record by virtue of this 15 disclosure. 16 See Order, Brennan Center v. Dep't of Justice, No. 09 To the On January 28, 2011, the plaintiff moved for summary 17 judgment seeking release of the entirety of three memoranda that 18 it alleges were improperly withheld pursuant to FOIA's "Exemption 19 5," which shields from disclosure "inter-agency or intra-agency 20 memorandums or letters which would not be available by law to a 21 party other than an agency in litigation with the agency." 22 U.S.C. § 552(b)(5). 23 encompass traditional common law privileges against disclosure, 24 including the attorney-client and deliberative-process 5 That exemption has been interpreted to 6 1 privileges, and the work-product doctrine. Nat'l Council of La 2 Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005). 3 three withheld documents that are the targets of the Brennan 4 Center's objections are: (1) a one-page memorandum provided by 5 the OLC to HHS and USAID on or about February 17, 2004, regarding 6 the constitutionality of the pledge requirement (the "February 7 Memorandum"); (2) a July 2, 2004, draft of a formal, but never- 8 finalized, OLC opinion addressing the constitutionality of the 9 pledge requirement (the "July 2 Memorandum"); and (3) a July 29, 10 2004, draft memorandum similar to the July 2 Memo (the "July 29 11 Memorandum"). The 12 The February Memorandum 13 On February 12, 2004, the General Counsel of HHS asked 14 the OLC to provide, on a "very short timeframe," "advice on the 15 constitutional issues raised by the grant restrictions under the 16 two statutes." 17 (March 12, 2004) (describing HHS request). 18 Memorandum from Renee Lettow Lerner at 2, J.A. 55 In response, on February 17, Renee Lettow Lerner, an 19 OLC attorney, sent an email to HHS Deputy General Counsel Paula 20 M. Stannard and USAID employee John Gardner attaching a one-page 21 memorandum containing at least some of the requested advice.3 3 All correspondence regarding the February Memorandum involved both USAID and HHS, although the March 12, 2004, letter suggests the advice was provided only at the behest of HHS. We have not found any explanation in the record for this 7 1 The memorandum explained that "[i]n the limited time available to 2 us, we have not been able to conduct a comprehensive analysis, 3 but we have reached the following tentative views, which might 4 need to be altered after further analysis." 5 at 1, J.A. 37. 6 that are the subject of this litigation, was supplied to the 7 plaintiff during the course of this litigation with all analysis 8 redacted. 9 February Memorandum The document, the first of the three memoranda In an email later that evening, Stannard conveyed 10 "draft language for the HIV/AIDS and trafficking grant 11 awards/agreements" to Lerner. 12 advice on grant announcements," J.A. 40 (Feb. 17, 2004). 13 also sent a copy to the USAID employee. 14 email was supplied to the Brennan Center, but most of it was 15 redacted. 16 18, in an email that was, in effect, withheld from disclosure, 17 i.e., it is redacted in its entirety. 18 Email from Stannard, "Re: OLC's She Again, a copy of the Lerner replied to Stannard the following day, February On February 19, a USAID employee, acting on behalf of 19 USAID employee Gardner, sent that agency's revised "Acquisition & 20 Assistance Policy Directive" ("AAPD")4 to Lerner, Stannard, and discrepancy. 4 "AAPDs serve as official sources for the latest updates in acquisition and assistance (A&A) policy and requirements. AAPDs provide information of significance including, but not limited to, advance notification of changes or implementation of 8 1 other HHS and State Department employees. 2 Stannard and HHS employee Demetrios Kouzoukas sent "a final draft 3 of the language" to Lerner, Gardner, and other HHS, USAID, and 4 State Department employees, and thanked those on the email chain 5 for their comments. 6 HHS HIV/AIDS award instruments," J.A. 48 (Feb. 19, 2004). 7 Later that day, Email from Demetrios Kouzoukas, "Language in One week later, on February 26, 2004, USAID issued an 8 AAPD intended to "provide clauses to be included as new standard 9 provisions for assistance agreements and contracts that include 10 FY 2004 HIV/AIDS funds." USAID AAPD 04-04 Revised, 11 "Implementation of the United States Leadership Against HIV/AIDS, 12 Tuberculosis and Malaria Act of 2003" at 2, J.A. 167 (Feb. 26, 13 2004) ("February 26 AAPD"). 14 pledge requirement only for "Non-U.S. Non-Governmental 15 Organizations and Public International Organizations." 16 That meant that any grant to a foreign organization would include The February 26 AAPD included the Id. at 5. new requirements to A&A regulations and procedures." Acquisition and Assistance Policy Directives (AAPDs) and Contract Information Bulletins (CIBs), available at (last visited August 3, 2012). "Acquisition refers to obtaining goods and services, through various types of contracts, for the use or benefit of the Agency. Assistance refers to transferring funds (or other valuables) from USAID to another party for the implementation of programs which will contribute to the public good . . . ." Doing Business with USAID, available at (last visited August 8, 2012). No evidence in the record of which we are aware refers to any formal process that might exist for the creation or approval of AAPDs. 9 1 a clause explaining that "[a]s a condition of entering into this 2 agreement, the recipient agrees that it has a policy explicitly 3 opposing, in its activities outside the United States, 4 prostitution and sex trafficking." 5 language would be included in the grant language required with 6 respect to U.S. organizations. 7 January 15, 2004, prior to the OLC's February memorandum, did 8 include the pledge requirement language for both U.S. and non- 9 U.S. organizations. Id. at 6. No similar An AAPD that had been issued on USAID AAPD 04-04, "Implementation of the 10 United States Leadership Against HIV/AIDS, Tuberculosis and 11 Malaria Act of 2003" at 3, J.A. 162 (Jan. 15, 2004). 12 On June 24, 2004, HHS issued a grant proposal that 13 required "any foreign recipient [to] have a policy explicitly 14 opposing, in its activities outside the United States, 15 prostitution and sex trafficking." 16 "HIV Treatment for Research Subjects or by Researchers in Kenya" 17 at 7, J.A. 176 (June 24, 2004). 18 contained a footnote explaining that the OLC "in a draft opinion 19 determined that this provision only may be applied to foreign 20 non-governmental organizations and public international 21 organizations because of the constitutional implications of 22 applying it to U.S. organizations." 23 "Guidance on the Definition and Use of the Child Survival and 24 Health Programs Fund and the Global HIV/AIDS Initiative Account" HHS Funding Announcement, A July 22, 2004, USAID document 10 USAID FY 2004 Update, 1 at 35 n.10, J.A. 197 (July 22, 2004) ("July 22 USAID Update"). 2 On August 3, 2004, USAID issued another AAPD explaining that 3 "[t]he US Government has determined that it is appropriate to 4 apply the [pledge] requirement . . . only to foreign 5 organizations, including public international organizations." 6 USAID AAPD 04-09, "Anti-Trafficking Activities - Limitation on 7 the Use of Funds; Restriction on Organizations Promoting, 8 Supporting or Advocating Prostitution" at 3, J.A. 200 (Aug. 3, 9 2004) ("August 3 AAPD"). 10 The July Memoranda 11 In a July 2, 2004 email, the OLC provided HHS with a 12 thirty-page draft opinion - the second document the plaintiff 13 seeks. 14 document that the plaintiff contends must be disclosed, was 15 emailed to HHS on July 30. 16 opinions are redacted with the exception of a date, title, and 17 introductory sentence. 18 district court concluded that contrary to the OLC's view conveyed 19 in February, those drafts counseled implementation of the pledge 20 requirement for both U.S.-based and foreign organizations.5 Another version of that draft, dated July 29, the third In the record on appeal, both draft After an in camera review, however, the 5 Despite the July 2004 memoranda that opined that the pledge requirement could constitutionally be applied to domestic activities, in July and August, USAID continued to advise that the requirement would only be applied to foreign organizations, as evidenced by the July 22 USAID Update and August 3 AAPD. 11 1 Brennan Center v. Dep't of Justice, No. 09 Civ. 8756 at 17-18, 2 2011 WL 4001146, at *7, 2011 U.S. Dist. LEXIS 99121, at *19 3 (S.D.N.Y. Aug. 30, 2011). 4 ever finalized or issued. 5 No formal OLC opinion on the issue was In September 2004, Daniel Levin, the Acting Assistant 6 Attorney General for the OLC, wrote to the general counsel of HHS 7 confirming that "earlier this year . . . [DOJ] gave its tentative 8 advice" that the pledge requirement could only be applied to 9 foreign organizations overseas, but explained that "[w]e have 10 reviewed the matter further and we are withdrawing that tentative 11 advice. . . . 12 domestic pledge requirement's] constitutionality." 13 Levin to HHS General Counsel Alex M. Azar, II at 1, J.A. 207 14 (Sept. 20, 2004)("Levin Letter"). 15 by either the OLC or HHS, but, according to the defendants, it 16 was "improperly leaked . . . [and] later made public by members 17 of Congress." [T]here are reasonable arguments to support [the Letter from This letter was not released Defs.' Br. at 13. 18 The first public discussion of the agencies' 19 deliberations concerning the pledge requirement was held during a 20 March 2005 hearing of the Foreign Operations Subcommittee of the 21 House Appropriations Committee. 22 U.S. Global AIDS coordinator, testified that 23 24 25 Randall Tobias, who was then [t]he [OLC] provided some tentative advice initially that those restrictions should be applied only to foreign organizations. 12 1 2 3 4 5 6 7 8 9 Sometime mid- to late- . . . September of 2004, [the OLC] withdrew that earlier tentative advice and advised that that provision was intended by the Congress to apply without that limitation to both domestic organizations as well as foreign organizations. And so I'm simply following the legislation and the advice to implement that. 10 Foreign Operations, Export Financing, and Related Programs 11 Subcommittee Hearing Testimony of Randall L. Tobias, J.A. 236 12 (March 2, 2005)("Tobias Testimony"). 13 In May 2005, HHS announced that it would apply the 14 pledge requirement to domestic organizations, and USAID did the 15 same in June 2005. 16 In a July 17, 2007, letter from Principal Deputy 17 Assistant Attorney General Brian Benczkowski to Congressman Henry 18 Waxman, Benczkowski further explained the OLC's positions on the 19 pledge requirement. 20 tentative advice [to HHS and USAID] that the [pledge 21 requirement] . . . could, under the Constitution, be applied only 22 to foreign organizations acting overseas." 23 Benczkowski to Congressman Waxman at 1, J.A. 230 (July 17, 24 2007)("Benczkowski Letter"). 25 OLC had thereafter changed its mind and advised in the September 26 2004 letter that the pledge requirement could be applied 27 domestically because there were "reasonable arguments to defend" 28 doing so. "[I]n February 2004, the [OLC] provided Id. at 1-2. Letter from Brian But Benczkowski explained that the The letter also noted that the OLC would 13 1 not turn over its internal documents on the issue because of 2 "substantial confidentiality interests."6 Id. at 2. 3 The District Court Opinion 4 The district court considered the foregoing evidence in 5 analyzing the question of whether the agencies had 6 "expressly . . . adopt[ed] or incorporate[d]" the memoranda 7 sufficiently to waive the protection of Exemption 5. 8 Center, 2011 WL 4001146, at *3, 2011 U.S. Dist. LEXIS 99121, at 9 *8-*9 (quoting La Raza, 411 F.3d at 356); see also discussion of Brennan 10 Exemption 5, at Part II of the Discussion section of this 11 opinion, below. 12 court concluded that the deliberative-process privilege did not 13 apply. 14 15 In ordering disclosure of the memoranda, the It is clear from the various AAPDs, internal government letters and memoranda, public 6 Several news articles - at least one of which was published before the agencies themselves had spoken publicly -also noted the OLC's advice on this issue. A February 28, 2005, Wall Street Journal article explained that "[t]he Bush Administration had previously applied the requirement only to overseas groups because the Justice Department initially advised that it would be an unconstitutional violation of free speech to demand that American grant applicants support Mr. Bush's policy. But the Justice Department reversed itself last fall." Michael M. Phillips, Bush Ties Money for AIDS Work to a Policy Pledge, WALL ST. J., Feb. 28, 2005. A May 18, 2005, Washington Post article similarly said that "[i]nitially, the policy was applied only to foreign organizations operating overseas. U.S.-based charities were exempt because the Justice Department believed that forcing them to make the declaration might infringe their First Amendment right of free speech." David Brown, U.S. Backs Off Stipulation on AIDS Funds, WASH. POST, May 18, 2005. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 statements made by Government officials, and other materials reviewed by the Court in camera that, between February and September 2004, USAID and HHS adopted as agency policy both the conclusions provided in the February Memo that the Pledge Requirement should be applied to foreign organizations only, as well as OLC's reasoning and analysis that application of the Pledge Requirement to domestic organizations would violate the First Amendment. Indeed, from the public record alone, there can be little doubt that this was the case. . . . 14 15 16 17 18 19 20 21 22 23 24 Further, the record also reveals that the conclusions and analysis contained in the July Memoranda, which the Court has examined in camera, were the basis for the Government's determination to alter its policy and apply the Pledge Requirement to U.S.-based organizations. . . . [A]lthough the documents were never mentioned specifically by name, the Government incorporated the July Memoranda by reference [in the relevant public statements]. 25 Brennan Center, 2011 WL 4001146, at *6-*7, 2011 U.S. 26 Dist. LEXIS 99121, at *17-*19. 27 The court also concluded that because the memoranda had 28 been "incorporated . . . into HHS's and USAID's official policy" 29 they were not protected by the attorney-client privilege. 30 *7, 2011 U.S. Dist. LEXIS 99121, at *20. 31 granted the plaintiff's motion for summary judgment, denied the 32 defendants' cross-motion for summary judgment, and ordered the 33 disclosure of all three memoranda. 34 The defendants appeal. 15 Id. at The court therefore 1 DISCUSSION 2 I. Standard of Review 3 "We review de novo a district court's grant of summary 4 judgment in a FOIA case," La Raza, 411 F.3d at 355, as, of 5 course, we review all such motions, see, e.g., Oneida Indian 6 Nation of N.Y. v. Madison County, 665 F.3d 408, 424 (2d Cir. 7 2011), and cross motions, for summary judgment, see, e.g., 8 Terwilliger v. Terwilliger, 206 F.3d 240, 244 (2d Cir. 2000). 9 Summary judgment is appropriate if there is "no genuine dispute 10 as to any material fact" and the moving party is "entitled to 11 judgment as a matter of law." 12 parties do not dispute that this matter was properly decided on 13 cross motions for summary judgment, although, of course, they 14 differ as to which side should have prevailed. 15 16 II. A. Fed. R. Civ. P. 56(a). The Deliberative Process Exemption Basic Principles. 17 1. 18 Consistent with its purpose to "promote honest and open Generally. 19 government[,] and to assure the existence of an informed 20 citizenry in order to hold the governors accountable to the 21 governed[,] FOIA strongly favors a policy of disclosure." 22 Raza, 411 F.3d at 355 (internal quotation marks, alterations, and 23 citations omitted). 24 records unless its documents fall within one of the specific, La It "requires the government to disclose its 16 1 enumerated exemptions set forth in the Act. 2 FOIA's purposes, these statutory exemptions are narrowly 3 construed." 4 the burden of demonstrating that an exemption applies. 5 356. 6 Consistent with Id. at 355-56 (citations omitted). The agency bears Id. at The memoranda being sought by the Brennan Center in 7 this case were withheld by the government defendants pursuant to 8 FOIA Exemption 5, which exempts "inter-agency or intra-agency 9 memorandums or letters which would not be available by law to a 10 party other than an agency in litigation with the agency" from 11 the disclosure otherwise required under the Act. 12 § 552(b)(5). 13 the decision making processes of government agencies." 14 Sears, Roebuck, & Co., 421 U.S. 132, 150 (1975) (internal 15 quotation marks omitted). 16 on documents reflecting advisory opinions, recommendations and 17 deliberations comprising part of a process by which governmental 18 decisions and policies are formulated." 19 marks and alteration omitted). 20 21 22 23 24 25 26 27 28 5 U.S.C. The privilege is based "on the policy of protecting NLRB v. Prior case law examining it "focuses Id. (internal quotation "[T]here are enough incentives as it is for playing it safe and listing with the wind," Ackerly v. Ley, 137 U.S. App. D.C. 133, 138, 420 F.2d 1336, 1341 (1969), and as [the Court has] said in an analogous context, "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the detriment of the 17 1 2 decisionmaking process." United States v. Nixon, 418 U.S. 683, 705 (1974) . . . . 3 Sears, 421 U.S. at 150-51 (emphasis omitted; second alteration in 4 original); see also Wolfe v. Dep't of Health & Human Servs., 839 5 F.2d 768, 773 (D.C. Cir. 1988)(en banc)("Congress adopted 6 Exemption 5 because it recognized that the quality of 7 administrative decision-making would be seriously undermined if 8 agencies were forced to operate in a fishbowl."). 9 "An inter- or intra-agency document may be withheld 10 pursuant to the deliberative process privilege [i.e., 11 section 552(b)(5)] if it is: (1) 'predecisional,' i.e., 'prepared 12 in order to assist an agency decisionmaker in arriving at his 13 decision,' and (2) 'deliberative,' i.e., 'actually . . . related 14 to the process by which policies are formulated.'" 15 F.3d at 356 (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 16 473, 482 (2d Cir. 1999)); see also Grand Cent. P'ship, 166 F.3d 17 at 482 ("The privilege protects recommendations, draft documents, 18 proposals, suggestions, and other subjective documents which 19 reflect the personal opinions of the writer rather than the 20 policy of the agency." (internal quotation marks omitted)). La Raza, 411 21 However, even if the documents at issue are 22 "predecisional" and "deliberative," and thereby fall under the 23 scope of Exemption 5, there are circumstances under which they 24 will be found outside the scope of that protection. 18 As discussed 1 more thoroughly below, these exceptions include: (1) when the 2 contents of the document have been "adopted, formally or 3 informally, as the agency position on an issue or [are] used by 4 the agency in its dealings with the public," La Raza, 411 F.3d at 5 356-57 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 6 F.2d 854, 866 (D.C. Cir. 1980)); and (2) when the document is 7 more properly characterized as an "opinion[] [or] 8 interpretation[] which embod[ies] the agency's effective law and 9 policy," in other words, its "working law," Sears, 421 U.S. at 10 153 (internal quotation marks omitted). 11 In short, the document claimed to be exempt will be 12 found outside Exemption 5 if it closely resembles that which FOIA 13 affirmatively requires to be disclosed: "final opinions . . . 14 made in the adjudication of cases," "statements of policy and 15 interpretations which have been adopted by the agency and are not 16 published in the Federal Register," and "administrative staff 17 manuals and instructions to staff that affect a member of the 18 public." 19 20 5 U.S.C. § 552(a)(2)(A)-(C).7 2. The Scope of Exemption 5. Although Exemption 5 is set out by statute, it is the Supreme Court's decision in Sears 7 The litigation posture of Exemption 5 cases, the present one being no exception, focuses on the government proving the applicability of an exemption rather than the plaintiff proving applicability of one of the affirmative provisions because the burden rests on the government to shield documents from disclosure otherwise to be disclosed under FOIA. 19 1 that delineates the limits of that exemption, and which has been 2 the starting point for all of our discussions of it, as it is in 3 this case. 4 The Sears Court explained the circumstances under which 5 a document otherwise subject to Exemption 5 might lose its 6 protection. 7 "Advice and Appeals Memoranda" prepared by the General Counsel of 8 the National Labor Relations Board ("NLRB") discussing potential 9 charges against various employers. 10 The plaintiff had submitted a FOIA request for 421 U.S. at 142-43. The Court began by analyzing the process by which such 11 memoranda were created. Typically, the NLRB General Counsel 12 required certain charging decisions from its regional offices 13 first to be submitted to its central office so that the agency 14 had an "opportunity to formulate a coherent policy, and to 15 achieve some measure of uniformity, in enforcing the labor laws." 16 Id. at 141. 17 "set[] forth the facts of the case, a statement of the issues on 18 which advice [was] sought, and a recommendation." 19 General Counsel's office then assigned the case to a staff 20 attorney who assisted in preparing the "Advice and Appeals 21 Memorandum" that "briefly summarize[d] the facts, . . . set forth 22 the . . . legal or policy issue submitted together with a 23 detailed legal rationale, and contain[ed] instructions for the 24 final processing of the case." A regional director submitted a memorandum that Id. The Id. at 142 (internal quotation 20 1 marks omitted). 2 then decided whether or not to prosecute the charge. 3 Based on that memorandum, the regional director Id. The Court observed that while "the public is vitally 4 concerned with the reasons . . . [for] an agency policy actually 5 adopted," or "those communications which explain [a] decision," 6 "[t]he public is only marginally concerned with reasons 7 supporting a policy which an agency has rejected, or with reasons 8 which might have supplied, but did not supply, the basis for a 9 policy which was actually adopted on a different ground." 10 Id. at 152. 11 The reasons for a decision made by an agency, or a 12 policy actually adopted, however, "constitute the 'working law' 13 of the agency." 14 construed, calls for 'disclosure of all opinions and 15 interpretations which embody the agency's effective law and 16 policy, and the withholding of all papers which reflect the 17 agency's group thinking in the process of working out its policy 18 and determining what its law shall be.'" 19 Culp Davis, The Information Act: A Preliminary Analysis, 34 U. 20 Chi. L. Rev. 761, 797 (1967)) (some internal quotation marks 21 omitted). 22 [t]he affirmative portion of the Act, [which] expressly 23 requir[es] indexing of 'final opinions,' 'statements of policy 24 and interpretations which have been adopted by the agency,' and Id. at 153. Therefore, the exemption "properly Id. (quoting Kenneth "This conclusion is powerfully supported by . . . 21 1 'instructions to staff that affect a member of the public.'"8 2 Sears, 421 U.S. at 153 (quoting 5 U.S.C. § 552(a)(2)). 3 affirmative provisions, it reasoned, "represent[] a strong 4 congressional aversion to secret agency law, and represent[] an 5 affirmative congressional purpose to require disclosure of 6 documents which have the force and effect of law." 7 quotation marks, alterations, and citations omitted). 8 9 Those Id. (internal The Court concluded that NLRB memoranda that advised no action be taken, and thereby ended the inquiry and left the 10 responsible regional director with "no decision to make," fell 11 outside of Exemption 5 and therefore had to be disclosed. 12 155. 13 public is so vitally interested and which Congress sought to 14 prevent the agency from keeping secret." Id. at They "are precisely the kind of agency law in which the 15 Id. at 156. After determining that these memoranda were the type of 16 "agency law" which it concluded were non-exempt, the Court then 17 explained that "[f]or essentially the same reasons, these 18 memoranda are 'final opinions' made in the 'adjudication of 8 The Sears Court subsumed into its "working law" or "agency law" analysis all three of section 552(a)(2)'s affirmative provisions, and did not, for example, discuss "final opinions" separately from "statements of policy and interpretations which have been adopted by the agency." In many cases, as in Sears, the line between a "final opinion" and a "statement of policy and interpretation[]" is blurry, and the "working law" analysis therefore provides an interpretation aimed at aiding courts when presented with documents that fall between these categories. 22 1 cases' . . . pursuant to 5 U.S.C. § 552(a)(2)(A)," and thus must 2 be disclosed. 3 conclusions behind memoranda that advise prosecution "will come 4 out in the course of litigation before the Board; and . . . the 5 'law' with respect to these cases will ultimately be made not by 6 the General Counsel but by the Board or the courts." 7 Id. at 158. By contrast, the reasoning and Id. at 160. The Court then addressed a separate path towards the 8 loss of Exemption 5's protection - whether predecisional and 9 deliberative documents fall outside of that exemption if 10 "adopt[ed] or incorporate[d] by reference" into "what would 11 otherwise be a final opinion," in other words, in a document that 12 has already been found to be nonexempt. 13 they did. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 The Court concluded that The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports . . . [the decision to order disclosure]. Thus, we hold that, if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5. 23 1 Id. at 161 (emphasis in original). 2 On the same day that the Supreme Court decided Sears, 3 it also decided Renegotiation Board v. Grumman Aircraft 4 Engineering Corp., 421 U.S. 168 (1975), a companion case further 5 exploring the limits of Exemption 5. 6 documents created during the Renegotiation Board's process of 7 "deciding whether certain Government contractors have earned, and 8 must refund, 'excessive profits' on their Government contracts." 9 Id. at 170. Grumman had requested After exhaustively reviewing the process by which 10 these documents were created, the Court explained that if a 11 "Division Report" was created recommending a course of action, it 12 would be given to the Renegotiation Board for its review. 13 176-77. 14 bound by any prior recommendations. 15 discussion, to reject the proposed conclusion reached in the 16 Division Report, or to accept it for reasons other than those set 17 forth in the report." 18 different process, a "Regional Board Report" could be created. 19 Id. at 178-79. 20 Id. at But "[n]either the Board nor any of its members were Id. at 177. The Board was free, after Similarly, although under a The Court concluded that these reports were not subject 21 to disclosure because "the evidence utterly fails to support the 22 conclusion that the reasoning in the reports is adopted by the 23 Board as its reasoning, even when it agrees with the conclusion 24 of a report." 25 themselves had "no operative effect," and therefore could not be Id. at 184 (emphasis in original). 24 The reports 1 characterized as "final opinions," within the meaning of FOIA's 2 affirmative disclosure provisions. 3 indication that [a report's] reasoning has been adopted, there is 4 little public interest in [its] disclosure." 5 reports therefore retained their protection under Exemption 5. 6 Id. at 187. "[A]bsent Id. at 186. The The Grumman Court acknowledged that some agency 7 decisions may simply not have any accompanying public rationale. 8 "The effect of this decision [then] is that, in those cases in 9 which [the Renegotiation Board does not offer a summary of its 10 reasoning], the public will be largely uninformed as to the basis 11 for [its] decisions." 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Id. at 191. The Freedom of Information Act imposes no independent obligation on agencies to write opinions. It simply requires them to disclose the opinions which they do write. If the public interest suffers by reason of the failure of the Board to explain some of its decisions, the remedy is for Congress to require it to do so. It is not for us to require disclosure of documents, under the purported authority of the Act, which are not final opinions, which do not accurately set forth the reasons for the Board's decisions, and the disclosure of which would impinge on the Board's predecisional processes. Id. (citation omitted). Although Grumman did not explain its reasoning using 28 the same terminology as Sears, it also provided two somewhat 29 distinct paths through which Exemption 5's protections could be 30 lost: (1) if the reports had "operative effect" and were 31 therefore akin to "final opinions" - the equivalent of "working 25 1 law" in Sears's language; or (2) if the reports' reasoning and 2 conclusions had been adopted by the Board in issuing its own 3 decision - the equivalent of "express adoption or incorporation 4 by reference" in Sears. 5 3. Express Adoption or Incorporation by Reference. We 6 have had several occasions on which to apply the Supreme Court's 7 Exemption 5 jurisprudence, in particular Sears's "express 8 adoption" or "incorporation by reference" holding, on which the 9 district court relied. The most relevant for present purposes 10 was our decision in La Raza. 11 FOIA required disclosure of an OLC memorandum prepared for the 12 DOJ on the subject of whether state and local law enforcement 13 officials could lawfully enforce certain provisions of federal 14 immigration law. 15 "it did not expressly adopt or incorporate the OLC memorandum" 16 into a final opinion, and it was therefore protected by the 17 deliberative-process exemption, or the attorney-client privilege. 18 Id. 19 There we considered whether the La Raza, 411 F.3d at 352. The DOJ argued that Since 1996, the DOJ had been of the view that state and 20 local law enforcement could not enforce the civil provisions of 21 federal immigration law -- "such as overstaying one's visa or 22 entering the United States without proper documentation." 23 352-53 & n.1. 24 position, which it had released publicly. Id. at The OLC had issued a memorandum supporting this 26 Id. at 353. 1 In 2002, under a new presidential administration, the 2 DOJ changed its policy. Id. Then-Attorney General John Ashcroft 3 announced an immigration initiative employing state and local 4 agencies to enforce specified civil provisions of federal 5 immigration law. 6 the new initiative, the Attorney General reported that "[OLC] has 7 concluded that this narrow, limited mission we are asking state 8 and local police to undertake voluntarily - arresting aliens who 9 have violated . . . civil provisions that render an alien In a June 5, 2002, press conference explaining 10 deportable [ -] is within the inherent authority of the states." 11 Id. 12 On March 11, 2003, General Ashcroft wrote a letter to 13 an organization that had expressed an interest in the matter 14 explaining that "[OLC] previously opined that state and local law 15 enforcement officials have inherent authority to make arrests for 16 criminal immigration law violations generally." 17 three other letters from the Attorney General and an Acting 18 Assistant Attorney General containing similar language were 19 submitted to members of Congress. 20 another member of the Attorney General's office, speaking to a 21 group of local and state police department officials who were 22 part of an FBI advisory board, offered a detailed explanation of 23 the policy in which he repeatedly referenced the OLC's advice. 24 Id. at 354-55. 27 Id. at 354. Id. At least And in June 2003, 1 We concluded that the "repeated references" made by the 2 Attorney General and high-ranking DOJ officials to the document 3 "demonstrate[d] that the Department regarded the [m]emorandum as 4 the exclusive statement of, and justification for, its new 5 policy . . . ." 6 using the OLC Memorandum to justify and explain the Department's 7 policy and to assure the public and the very state and local 8 government officials who would be asked to implement the new 9 policy that the policy was legally sound." Id. at 357. The DOJ thus "made a practice of Id. at 358. The 10 memorandum was, indeed, the "primary legal authority justifying 11 and driving" the change in policy.9 12 Id. We thus concluded that the document had been expressly 13 adopted or incorporated by reference, and ordered it to be 14 released. 15 Id. Our decision in Wood v. FBI, 432 F.3d 78 (2d Cir. 16 2005), rested on a rationale similar to that employed by the 17 Supreme Court in Grumman. 18 a memorandum prepared by DOJ trial attorneys related to an 19 investigation of FBI agents alleged to have lied in affidavits 20 supporting arrest warrant applications. 9 There, a reporter sought disclosure of Id. at 80. We affirmed Referring to Grumman, we noted that "there must be evidence that an agency has actually adopted or incorporated by reference the document at issue; mere speculation will not suffice." La Raza, 411 F.3d at 359 (emphasis in original). We also observed that "a casual reference to a privileged document does not necessarily imply that an agency agrees with the reasoning contained in those documents." Id. 28 1 the district court's conclusion that the memorandum was properly 2 withheld under the work-product privilege pursuant to Exemption 3 5,10 and had not been incorporated by reference or expressly 4 adopted by the agency. 5 Id. at 84. The plaintiff had argued that a note on the memorandum 6 by a high-ranking DOJ official indicating that he would decline 7 prosecution constituted express adoption or incorporation by 8 reference of the memorandum itself. 9 10 11 12 13 14 15 16 17 18 But, we said: This brief notation does not indicate that DOJ adopted the reasoning of the . . . [m]emo. Neither [the endorsing official] nor any other high-level DOJ officials made any public references to the . . . [m]emo. There is no evidence in the record from which it could be inferred that DOJ adopted the reasoning of the [m]emo, and, as we explained in . . . La Raza, this failure is fatal. Id. at 84.11 10 The court did "not reach the question of whether [the La Raza] doctrine would require the disclosure of otherwise exempt attorney work-product," as opposed to documents exempt under the deliberative process exemption. Wood, 432 F.3d at 84. 11 Shermco Industries Inc. v. Secretary of Air Force, 613 F.2d 1314 (5th Cir. 1980) is similar. The court reversed a district court's conclusion that a memorandum discussing a bid award, which had been forwarded to the GAO as part of bid protest proceedings, lost its deliberative character. Id. at 1320. First, the court noted that "the decision [on to whom to award the bid] was not yet final." Id. at 1319. Second, "even if it were a final decision, these memoranda were not expressly incorporated by reference into the [final decision by the Air Force to award the contract]. They had been used by the Air Force internally in reaching their initial conclusion that [a Shermco competitor] was the lowest bidder, and they were produced to the GAO in aid of their defense against Shermco's protest, but they were never attached to any formal written decision by the Air Force." Id. at 1320. 29 1 4. The "Working Law" Principle. While our previous 2 cases and the proceedings thus far in this one have largely 3 focused on the issue of whether a memorandum has been expressly 4 adopted or incorporated by reference, Sears also requires us to 5 ask whether the OLC opinion constitutes the "working law of the 6 agency" and therefore must be disclosed. 7 If an agency's memorandum or other document has become 8 its "effective law and policy," it will be subject to disclosure 9 as the "working law" of the agency, Sears, 421 U.S. at 153, much 10 the same as it would be if expressly adopted or incorporated by 11 reference into a nonexempt document, id. at 161-62. 12 Court explained that the purposes undergirding FOIA required 13 disclosure in either instance. 14 that "working law" should be disclosed because "the public is 15 vitally concerned with the reasons which did supply the basis for 16 an agency policy actually adopted"), with id. at 161 (explaining 17 that documents expressly adopted or incorporated should be 18 disclosed in part because of "the public interest in knowing the 19 reasons for a policy actually adopted by an agency"). 20 explained above, the "working law" analysis is animated by the 21 affirmative provisions of FOIA, see 5 U.S.C. § 552(a)(2)(A)-(C), 22 and documents must be disclosed if more akin to that which is 23 required by the Act to be disclosed than that which may be The Sears Compare id. at 152 (explaining 30 As 1 withheld under Exemption 5. 2 these two means by which Exemption 5 protection may be lost.12 3 Sears separately analyzed each of Not surprisingly given the nature of much of its 4 caseload, the D.C. Circuit has become something of a specialist 5 in the "working law" exception. 6 length in Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 7 854 (D.C. Cir. 1980). 8 Department of Energy interpretations of its regulations, 9 specifically "memoranda from regional counsel to auditors working 10 in [the Department of Energy ("DOE")]'s field offices, issued in 11 response to requests for interpretations of regulations within 12 the context of particular facts encountered while conducting an 13 audit of a firm." 14 disclosure, contending that the memoranda were not binding on the The circuit analyzed it at some There, the plaintiff sought copies of Id. at 858. The agency argued against 12 The Eleventh Circuit is one of the few courts to have examined the link between these two elements of Sears. [D]ata "expressly adopt[ed] or incorporate[d] by reference" means predecisional deliberative material which is adopted and approved by the agency as its "effective law and policy." By expressly adopting the reasoning of her subordinate, the decisionmaker has in effect converted a rejected proposal into the rationale for the agency's working law. As a consequence, the documents are no longer considered predecisional[,] for they now support and explain the agency's position in the same manner a postdecisional document explains an agency decision. Fla. House of Representatives v. Dep't of Commerce, 961 F.2d 941, 945 n.4 (11th Cir.) (citation omitted), cert. dismissed, 506 U.S. 969 (1992). 31 1 audit staff -- the staff was free to disregard the conclusions 2 reached in those memoranda. 3 It noted that the memoranda were "at times 'amended' or 4 'rescinded,' which would hardly be necessary if the documents 5 contained merely informal suggestions to staff which could be 6 disregarded . . . ." 7 8 9 10 11 12 13 14 15 16 17 18 The court disagreed. Id. at 860. After examining the particular role that the documents played in the audit process, the court concluded that they were not suggestions or recommendations as to what agency policy should be. . . . [T]he memoranda are not advice to a superior, nor are they suggested dispositions of a case, as in Grumman. They are not one step of an established adjudicatory process, which would result in a formal opinion, as were the documents held exempt in [Sears]. Id. at 868. 19 20 21 22 23 24 25 26 27 28 29 30 Id. at 859. [T]hese opinions were routinely used by agency staff as guidance in conducting their audits, and were retained and referred to as precedent. If this occurs, the agency has promulgated a body of secret law which it is actually applying in its dealings with the public but which it is attempting to protect behind a label. This we will not permit the agency to do. Tentative opinions are not relied on as precedent; they are considered further by the decisionmaker. Id. at 869.13 13 In Coastal States, there was no allegation by the plaintiff that the memoranda had been expressly adopted or incorporated by reference, suggesting that in some cases disclosure is required even without public reliance on a document otherwise exempt from disclosure under Exemption 5. 32 1 In Public Citizen, Inc. v. Office of Management and 2 Budget, 598 F.3d 865 (D.C. Cir. 2010), the court considered the 3 plaintiff's request for documents created by the White House 4 Office of Management and Budget ("OMB") describing the 5 circumstances under which an agency might "bypass" OMB and submit 6 their budget materials directly to Congress. 7 documents at issue "summariz[ed]" OMB's understanding of which 8 agencies had such bypass authority and the bases for that 9 authority. Id. at 868. Id. at 867. The The court concluded that the documents 10 did not enjoy the protection of Exemption 5 because "[d]ocuments 11 reflecting OMB's formal or informal policy on how it carries out 12 its responsibilities fit comfortably within the working law 13 framework." 14 were referred to as precedent, and not part of an ongoing 15 deliberative process. 16 Id. at 875. As in Coastal States, the documents Similarly, in Tax Analysts v. IRS, 294 F.3d 71 (D.C. 17 Cir. 2002), the court ordered release of IRS documents explaining 18 whether certain tax exemptions applied to specific taxpayers, 19 concluding that they constituted "working law" because their 20 "tone . . . indicate[d] that they simply explain[ed] and 21 appl[ied] established policy." 22 marks omitted). 23 position of the Treasury Department that" and "We conclude," 24 while the exempt documents contained "such phrases as 'We Id. at 80-81 (internal quotation Those documents included the phrases "It is the 33 1 believe' and 'We suggest.'" 2 law, "[i]t is not necessary that the [documents] reflect the 3 final programmatic decisions of the program officers who request 4 them. 5 Comptroller of the Currency]'s final legal position concerning 6 the Internal Revenue Code, tax exemptions, and proper 7 procedures." To qualify as working It is enough that they represent [the Office of the 8 9 Id. at 81. Id. (emphasis in original). Our Court has relatively little case law examining the "working law" principle. In La Raza, we made passing reference 10 to Sears's conclusion that the public was "vitally concerned" 11 with the reasons for a policy actually adopted, and that these 12 reasons constituted the "working law" of the agency. 13 360. 14 relevance of the public adoption of the OLC memorandum at issue 15 to the question of whether it should be disclosed, noting that 16 "the public can only be enlightened by knowing what the [agency] 17 believes the law to be." 18 F.3d 607, 618 (D.C. Cir. 1997)). 19 the district court's conclusion that "[t]he Department's view 20 that it may adopt a legal position while shielding from public 21 view the analysis that yielded that position is offensive to 22 FOIA." 411 F.3d We did so, however, in the context of explaining the Id. (quoting Tax Analysts v. IRS, 117 In that context, we agreed with Id. (internal quotation marks omitted). 23 The question of whether a document constitutes "working 24 law," or has been expressly adopted or incorporated by reference, 34 1 then, are two paths to determining whether a withheld document 2 constitutes what FOIA affirmatively requires to be disclosed -- 3 "'final opinions,' 'statements of policy and interpretations 4 which have been adopted by the agency,' and 'instructions to 5 staff that affect a member of the public.'" 6 153 (quoting 5 U.S.C. § 552(a)(2)). 7 not framed in this manner because it is the government's burden 8 to prove that the privilege applies, and not the plaintiff's to 9 demonstrate the documents sought fall within one of the Sears, 421 U.S. at Most Exemption 5 cases are 10 enumerated section 552(a)(2) categories. 11 appropriate analysis requires us to determine whether the 12 documents sought more closely resemble the type of internal 13 deliberative and predecisional documents that Exemption 5 allows 14 to be withheld, or the types of documents that section 552(a)(2) 15 requires be disclosed. 16 court have asked whether the documents fit within the description 17 of "working law," in addition to whether they have been expressly 18 adopted or incorporated by reference into a nonexempt 19 communication. 20 B. 21 Nevertheless, the To do that, the Supreme Court and our Analysis 1. The February 2004 Memorandum. We begin our 22 analysis of the status of this document, as we must with respect 23 to all three memoranda at issue, by examining the process by 24 which the memorandum was created. 35 See Tigue v. Dep't of Justice, 1 312 F.3d 70, 78 (2d Cir. 2002) ("[W]hether a particular document 2 is exempt . . . depends not only on the intrinsic character of 3 the document itself, but also on the role it played in the 4 administrative process.") (internal quotation marks omitted), 5 cert. denied, 538 U.S. 1056 (2003). 6 5, properly construed, calls for disclosure of all opinions and 7 interpretations which embody the agency's effective law and 8 policy . . . ." 9 omitted). 10 We do so because "Exemption Sears, 421 U.S. at 153 (internal quotation marks The emails in the record indicate that USAID and HHS 11 officials asked the OLC for advice on the constitutional and 12 legal propriety of the implementation of the pledge requirement. 13 They then incorporated that advice into their decision as to 14 whether the language of the grants for HIV/AIDS and anti- 15 trafficking work would in fact require "an explicit and 16 affirmative policy opposing prostitution." 17 the OLC reviewed USAID's proposed grant language before the AAPD 18 that contained it was issued. 19 It also appears that It is not disputed that the February 2004 memorandum 20 was predecisional and deliberative. 21 at 874 ("We deem a document predecisional if it was generated 22 before the adoption of an agency policy and deliberative if it 23 reflects the give-and-take of the consultative process.") 24 (internal quotation marks omitted). 36 See Public Citizen, 598 F.3d 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 [A]n agency may meet its burden of proof under the 'predecisional document' test by demonstrating that the preparer was not the final decisionmaker and that the contents confirm that the document was originated to facilitate an identifiable final agency decision. . . . A predecisional document will qualify as 'deliberative' provided it . . . formed an essential link in a specified consultative process, . . . reflects the personal opinions of the writer rather than the policy of the agency, and . . . if released, would inaccurately reflect or prematurely disclose the views of the agency. 16 Providence Journal Co. v. Dep't of the Army, 981 F.2d 552, 559 17 (1st Cir. 1992) (citations, internal quotation marks, and 18 brackets omitted). 19 The "decision" being made by USAID and HHS was whether 20 they were constitutionally bound to disregard a duly enacted 21 statute's command that domestic organizations be subject to the 22 pledge requirement. 23 to as an "adjudication," it was a firm and concrete decision 24 regarding the agency's policy.14 Although this may not properly be referred See Cmty. Television of S. 14 In this sense, the "decision" made differs from one in which an agency considers and rejects a policy that it was never required to consider or implement. In Common Cause v. IRS, 646 F.2d 656 (D.C. Cir. 1981), the court considered whether documents related to the IRS's decision not to implement a plan it had proposed, which would have disclosed "the names of federal officials who had approached the IRS about the tax matters of third parties, as well as the subjects of such contacts," should have been released per FOIA. Id. at 658. The court rejected the plaintiffs' argument that the documents "constitute[d] the reasons which suppl[ied] the basis for the agency policy actually adopted." Id. at 659. "The proposed disclosure plan remained 37 1 Cal. v. Gottfried, 459 U.S. 498, 515-516 (1983) ("[H]owever broad 2 an administrative agency's discretion in implementing a 3 regulatory scheme may be, the agency may not ignore a relevant 4 Act of Congress. . . . 5 eyes' to the existence of the statute." (citation omitted)); 6 Lincoln v. Vigil, 508 U.S. 182, 193 (1993) ("[A]n agency is not 7 free simply to disregard statutory responsibilities . . . ."); 8 see also Presidential Authority to Decline to Execute 9 Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994) 10 (explaining the president's ability to decline to enforce 11 statutes he views as unconstitutional); Bristol-Meyers Co. v. 12 FTC, 598 F.2d 18, 25 (D.C. Cir. 1978) (concluding that an 13 agency's decision not to proceed with rulemaking is analogous to [T]he agency cannot simply 'close its just that. Its rejection did not, therefore, constitute the making of law or policy by an agency. The exchange of ideas and proposals which took place within the Service with respect to the proposed plan is precisely the type of communication which Congress meant to protect in enacting Exemption 5." Id. The court considered and rejected the argument that the memoranda should be disclosed because they contained the "written reasons for the agency's final decision not to implement the proposed plan." Id. "This case differs from Sears in many important respects. The present case involves the voluntary suggestion, evaluation, and rejection of a proposed policy by an agency, not the agency's final, unappealable decision not to pursue a judicial remedy in an adversarial dispute . . . . No statute demands that the IRS voluntarily disclose information about third-party contacts . . . ." Id. at 659-60. The court also considered the broader implications of the plaintiffs' argument, concluding that it would "virtually eliminate the governmental privilege" as "[e]very rejection of a proposal, no matter how infeasible or insignificant, would become a 'final decision' of an agency." Id. at 660. 38 1 the NLRB's non-charging decision in Sears, and thus would not 2 enjoy the protection of Exemption 5). 3 concerning this decisionmaking process in the record. 4 We find no other evidence No one at the OLC made the decision that the pledge 5 requirement as it pertained to domestic organizations would not 6 be implemented. 7 explained to the district court by affidavit, "OLC does not 8 purport, and in fact lacks authority, to make policy decisions. 9 OLC's legal advice and analysis informs the decisionmaking of As Paul Colborn, special counsel to the OLC, 10 Executive Branch officials on matters of policy, but OLC's legal 11 advice is not itself dispositive as to any policy adopted." 12 Decl. of Paul P. Colborn at 2, J.A. 318 (March 11, 2011). 13 plaintiff does not submit contrary evidence suggesting that the 14 OLC's recommendation was effectively binding on the agency, as in 15 Coastal States, 617 F.2d at 869, or left it with "no decision to 16 make," as in Sears, 421 U.S. at 155. 17 does not constitute "working law," or "the agency's effective law 18 and policy." 19 views were adopted by reference by USAID in nonexempt 20 communications, and therefore must be disclosed. 21 Id. at 153. The The February Memorandum We nonetheless conclude that the OLC's The first explicit reference to the OLC advice came in 22 a July 22, 2004, USAID document entitled "Guidance on the 23 Definition and Use of the Child Survival and Health Programs Fund 24 and the Global HIV/AIDS Initiative Account." 39 There the agency 1 explained that the funding statute "requires non-U.S. non- 2 governmental organizations . . . receiving HIV/AIDS funds to 3 agree that they have a policy explicitly opposing, in their 4 activities outside of the United States, prostitution and sex 5 trafficking." 6 document explained that "[t]he Office of Legal Counsel, U.S. 7 Department of Justice in a draft opinion determined that this 8 provision only may be applied to foreign non-governmental 9 organizations and public international organizations because of July 22 USAID Update at 35. In a footnote, the 10 the constitutional implications of applying it to U.S. 11 organizations." 12 Id. at 35 n.10.15 Then, in March 2005, after HHS and USAID had shifted 13 their positions, tentatively deciding to apply the pledge 14 requirement domestically, Randall Tobias, the USAID Global AID 15 Plaintiff urges us also to consider the September 20, 2004, letter from an OLC official to the general counsel of HHS explaining that the "tentative advice" offered earlier was being "withdraw[n]." Levin Letter at 1-2. Because there were "reasonable arguments" to support the constitutionality of the policy, the OLC official stated, "we believe that HHS may implement these provisions." Id. at 1. Because this letter was neither written by a decisionmaker nor released publicly by the decisionmaking agency, its relevance is limited. It does not aid in establishing either express adoption or incorporation by reference, and neither does it suggest that the February 2004 OLC opinion was considered the "working law" of the agency. Rather, it suggests that even after the February memorandum was sent to HHS, a deliberative process continued, and advice was later offered again to HHS that was also non-binding. In this sense, it supports the defendant's contention that the February memorandum should have been considered exempt from disclosure. 40 1 Administrator, made a second reference to the February 2 Memorandum. 3 agency's change in positions, he explained: 4 5 6 7 8 9 10 11 12 13 14 15 16 When asked in a Congressional hearing about the The [OLC] . . . provided some tentative advice initially that those restrictions should be applied only to foreign organizations. Sometime mid- to late-, I think, in September of 2004, they withdrew that earlier tentative advice and advised that that provision was intended by the Congress to apply without that limitation to both domestic organizations as well as foreign organizations. And so I'm simply following the legislation and the advice to implement that. Tobias Testimony, J.A. 236.16 17 Thus, there were two public statements referencing the 18 February 2004 memorandum -- the July 22 footnote, and the Tobias 19 testimony. 20 establish express adoption or incorporation by reference. We conclude that these references taken together 16 An additional "public" reference was made to the February 2004 memorandum, in a July 2007 letter from an OLC official to Congressman Henry Waxman. Waxman had requested an explanation from the OLC regarding its interpretation of the pledge requirement. The OLC wrote that in February 2004 it had provided "tentative advice" to HHS and USAID that the pledge requirement "could, under the Constitution, be applied only to foreign organizations acting overseas." Benczkowski Letter at 1. The letter then went on to explain the subsequent change in advice. This letter is also of limited relevance in determining whether or not the February 2004 opinion should be subject to disclosure because it was not authored by a decisionmaker from USAID or HHS. (Again, this would be different had plaintiff adduced evidence that OLC opinions were essentially binding upon the agencies.) 41 1 To be sure, neither the July 22 footnote nor Tobias's 2 testimony discussed at length the rationale provided by the OLC 3 for its conclusion as to the propriety of applying the pledge 4 requirement to domestic grantees. 5 was limited to one page in the first instance, we conclude that 6 the July 22 footnote's explanation that the pledge requirement 7 would not be enforced "because of the constitutional implications 8 of applying it to U.S. organizations," July 22 USAID Update at 35 9 n.10, at least when reenforced by the Tobias reference, Noting that the advice itself 10 demonstrates sufficient reliance on both the conclusion and 11 reasoning of the OLC memorandum to remove the protection of the 12 deliberative-process exemption.17 17 In a pre-Sears case, the D.C. Circuit ordered disclosure pursuant to Exemption 5 based on reasoning similar to what we apply here. We do not feel that [the agency] should be required to 'operate in a fishbowl,' but by the same token we do not feel that [the party seeking disclosure] should be required to operate in a darkroom. If the [agency] did not want to expose its staff's memorandum to public scrutiny it should not have stated publicly in its April 11 ruling that its action was based upon that memorandum, giving no other reasons or basis for its action. When it chose this course of action 'as a matter of convenience' the memorandum lost its intra-agency status and became a public record, one which must be disclosed . . . . Am. Mail Line, Ltd. v. Gulick, 411 F.2d 696, 703 (D.C. Cir. 1969) (citation omitted). 42 1 Any agency faces a political or public relations 2 calculation in deciding whether or not to reference what might 3 otherwise be a protected document in explaining the course of 4 action it has decided to take. 5 agency is not required to explain its reasons publicly. 6 Nonetheless, where it determines there is an advantage to doing 7 so by referencing a protected document as authoritative, it 8 cannot then shield the authority upon which it relies from 9 disclosure. 10 2. In many cases, as here, the The July 2004 Memos. As outlined above, on July 11 2, 2004, OLC lawyer Lerner sent an email to HHS and USAID 12 officials attaching a 30-page draft memorandum with the 13 statement, "Any comments you have would be much appreciated." 14 Email from Lerner, "OLC draft opinion on Sex Trafficking, AIDS 15 Act grant restrictions." 16 2004, another OLC lawyer sent an updated draft of the memorandum 17 to the HHS general counsel. 18 J.A. 92 (July 2, 2004). On July 30, On September 20, 2004, an OLC official explained in 19 response to the original February inquiry from USAID and HHS as 20 to the constitutionality of the pledge requirement that "we 21 believe that HHS may implement these provisions. 22 provisions are challenged in court, the Department stands ready 23 to defend their constitutionality, in accordance with its 24 longstanding practice of defending congressional enactments under 43 If the 1 such circumstances." 2 That letter made no reference to the July OLC memos. 3 only sparse explanation of the legal basis for OLC's conclusion 4 that the pledge requirement could be defended. 5 Levin Letter at 1-2 (footnotes omitted). It offered Id. On May 3, 2005, HHS issued a new policy outlining its 6 updated "funding restrictions," which explained that "any 7 recipient must have a policy explicitly opposing prostitution and 8 sex trafficking." 9 to HIV Counseling and Testing (VCT) and Enhancing HIV/AIDS HHS Funding Announcement, "Increasing Access 10 Communications, Prevention, and Care in Botswana, Lesotho, South 11 Africa, Swaziland and Cote d'Ivoire" at 10, J.A. 218 (May 3, 12 2005). 13 nor refer to it as a change in policy. 14 The document does not explain the basis for that policy, On June 9, 2005, USAID issued an updated AAPD that 15 required domestic grantees to "have a policy explicitly opposing 16 prostitution and sex trafficking." 17 "Implementation of the United States Leadership against HIV/AIDS 18 Tuberculosis and Malaria Act of 2003 - Eligibility Limitation on 19 the Use of Funds and Opposition to Prostitution and Sex 20 Trafficking" at 5, J.A. 225 (June 9, 2005). USAID AAPD 05-04, 21 In this AAPD, USAID did state that "[c]onsistent with 22 guidance from the U.S. Department of Justice," USAID would "now 23 apply [the pledge requirement] to U.S. organizations as well as 24 foreign organizations." June 2005 AAPD at 2, J.A. 223. 44 Such 1 reference to guidance from the DOJ does not, however, indicate 2 that USAID (or HHS) adopted the reasoning of the July memoranda. 3 Nor does the fact that the agencies acted in conformity with the 4 July memoranda establish that the agencies adopted their 5 reasoning. 6 document's conclusions does not necessarily involve reliance on a 7 document's analysis: both will ordinarily be needed before a 8 court may properly find adoption or incorporation by reference." 9 La Raza, 411 F.3d at 358. 10 Grumman, 421 U.S. at 184. "Mere reliance of a When Tobias testified before Congress that USAID had 11 changed its policy, he explained that the OLC's tentative advice 12 had been withdrawn in mid- to late-September 2004. 13 Testimony, J.A. 236. 14 September 2004 OLC letter, not to either of the July 2004 draft 15 memoranda. 16 See Tobias That appears to be a reference to the On the record before us, then, Tobias's testimony 17 referenced the September 2004 letter. The lack of any specific 18 reference to the July 2004 memoranda by either USAID or HHS are 19 further indications that the July memoranda were in fact parts of 20 the predecisional and deliberative process that yielded the 21 September 2004 letter. 22 The July 2007 letter to Congressman Waxman also 23 explained the change in policy solely by reference to the 24 September 2004 letter. Although the July 2007 letter was not 45 1 written by a decisionmaker and therefore could not have served as 2 a basis for express adoption or incorporation by reference, it 3 serves as evidence that it was the September 2004 letter, and not 4 the July 2004 draft memoranda, that led to HHS and USAID's 5 decisions to implement the pledge requirement with respect to 6 U.S.-based organizations. 7 In sum, there is no evidence that the USAID or HHS 8 based its change in policy on the draft memoranda it seeks. We 9 therefore cannot conclude, as did the district court, that either 10 agency expressly adopted or incorporated by reference these 11 drafts in explaining their policy change. 12 circumstance, ordering release of these never-finalized memoranda 13 would fail to "safeguard and promote agency decisionmaking 14 processes" by, for example, not "protect[ing] against confusing 15 the issues and misleading the public by dissemination of 16 documents suggesting reasons and rationales for a course of 17 action which were not in fact the ultimate reasons for the 18 agency's action," and failing to "assure that subordinates within 19 an agency will feel free to provide the decisionmaker with their 20 uninhibited opinions and recommendations without fear of later 21 being subject to public ridicule or criticism . . . ." 22 Providence Journal, 981 F.2d at 557 (quoting Coastal States, 617 23 F.2d at 866); see also Grumman, 421 U.S. at 184-85 ("[If] the 24 evidence utterly fails to support the conclusion that the 46 In such a 1 reasoning in the reports is adopted by the Board as its 2 reasoning, even when it agrees with the conclusion of a 3 report, . . . the reports are not final opinions and do fall 4 within Exemption 5."). 5 We conclude that the district court erred in ordering 6 disclosure of the July memoranda because there is insufficient 7 evidence that those memoranda were expressly adopted or 8 incorporated by reference by USAID, or became the "working law" 9 of the agency, sufficient to remove the deliberative-process 10 protection. 11 III. Attorney-Client Privilege 12 The defendants argue that even if the February 2004 13 memorandum is otherwise subject to disclosure, it is protected 14 from such disclosure by the attorney-client privilege, Defs.' Br. 15 at 51-52, which is encompassed by Exemption 5, La Raza, 411 F.3d 16 at 360.18 17 (1) between a client and his or her attorney (2) that are "The attorney-client privilege protects communications 18 In its reply brief, the defendants for the first time argue that the plaintiff has waived its argument that the February 2004 document is not protected by the attorney-client privilege because the argument was not raised below. Defs.' Reply at 20-21. A review of the plaintiff's motion for summary judgment establishes otherwise. See Mem. in Supp. of Pl.'s Mot. for Summ. J., Brennan Center v. DOJ, No. 09 Civ. 8756, at 17-19 (S.D.N.Y. Jan. 28, 2011), ECF No. 21. Indeed, the district court considered this argument, concluding that the defendants' argument that the attorney-client privilege protected that document from disclosure "must fail." 47 1 intended to be, and in fact were, kept confidential (3) for the 2 purpose of obtaining or providing legal assistance." 3 States v. Mejia, 655 F.3d 126, 132 (2d Cir.), cert. denied, 132 4 S. Ct. 553 (2011). 5 most confidential communications between government counsel and 6 their clients that are made for the purpose of obtaining or 7 providing legal advice." 8 (2d Cir. 2007). 9 United "[T]he attorney-client privilege protects In re County of Erie, 473 F.3d 413, 418 In La Raza, we explained that "[l]ike the deliberative 10 process privilege, the attorney-client privilege may not be 11 invoked to protect a document adopted as, or incorporated by 12 reference into, an agency's policy." 13 reasons underlying the absence of Exemption 5 protection for such 14 a document otherwise covered by the deliberative-process 15 exemption also underlie the agency s loss of the protection of 16 the attorney-client privilege. 411 F.3d at 360. The 17 18 19 20 21 22 23 24 25 26 27 28 [O]nce an agency adopts or incorporates [a] document, frank communication will not be inhibited. Indeed, once an attorney's (or employee's) recommendation becomes agency law, the agency is then responsible for defending that policy, and the attorney (or employee) 'will generally be encouraged rather than discouraged' by public knowledge that their policy suggestions or legal analysis have been adopted by the agency." Id. (quoting Sears, 421 U.S. at 161). 29 cannot allow the Department to make public use of the Memorandum 48 As we explained, "We 1 when it serves the Department's ends but claim the attorney- 2 client privilege when it does not." 3 Id. at 361. As with respect to the lawyer-client privilege in other 4 contexts, "it is vital to [such] a claim . . . that the 5 communications between client and attorney were made in 6 confidence and have been maintained in confidence." 7 F.3d at 134 (quoting In re Horowitz, 482 F.2d 72, 81-82 (2d Cir. 8 1973)). 9 client testifies concerning portions of the attorney-client Mejia, 655 And "[c]ourts have found waiver by implication when a 10 communication, . . . and when a client asserts reliance on an 11 attorney's advice as an element of a claim or defense . . . . " 12 In re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (internal 13 quotation marks omitted). 14 privileged communication to assert a claim or defense is similar 15 to the type of express adoption or incorporation by reference 16 that vitiates Exemption 5 protection -- in either case the party 17 cannot invoke that relied-upon authority and then shield it from 18 public view. 19 served to remove the deliberative-process privilege thus also 20 constitute waiver of the attorney-client privilege. A party's reliance on an otherwise The references to the February 2004 memorandum that 21 On this score, the defendants invoke the same argument 22 as they did with regard to the deliberative-process exemption -- 23 that the instances of express adoption or incorporation cited by 24 the plaintiff are not sufficient to withdraw the protection of 49 1 Exemption 5. 2 the deliberative process exemption for the reasons set forth 3 above. 4 We have concluded to the contrary with respect to The defendants urge us to revisit our holding in La 5 Raza, contending that there we misconstrued Sears. La Raza is 6 the law of this Circuit and this panel, acting as a panel cannot 7 change it. 8 LLC, 645 F.3d 114, 131 n.18 (2d Cir. 2011) (acknowledging that we 9 are bound by the law of the Circuit as established by one or more See, e.g., City of New York v. Mickalis Pawn Shop, 10 previous panel decisions); European Cmty. v. RJR Nabisco, Inc., 11 424 F.3d 175, 179 (2d Cir. 2005) ("We are bound by the decisions 12 of prior panels until such time as they are overruled either by 13 an en banc panel of our Court or by the Supreme Court.") 14 (internal quotation marks omitted), cert. denied, 546 U.S. 1092 15 (2006). 16 We note nonetheless that the government focuses on the 17 Sears Court's statement that "[t]echnically, of course, if a 18 document could be, for example, both a 'final opinion' and an 19 intra-agency memorandum within Exemption 5, it would be 20 nondisclosable, since the Act 'does not apply' to documents 21 falling within any of the exemptions." 22 That footnote was employed in the context of the Court's 23 observation that "Exemption 5 can never apply" to "working law." 24 Id. at 153-54. 421 U.S. at 154 n.21. By prefacing its comment with the term 50 1 "technically" the Court suggested that this observation in Sears 2 left the holding of Sears undisturbed - that when what would 3 otherwise be an exempt memorandum becomes non-exempt because of 4 its status as "working law," or through express adoption or 5 incorporation by reference, for all practical purposes it falls 6 outside of Exemption 5. 7 agree with the plaintiff that "[t]he text [of Sears] makes clear 8 that the footnote is contemplating a logical impossibility." 9 Pl.'s Br. at 52. 10 We are, in other words, inclined to The government points to Federal Open Market Committee 11 v. Merrill, 443 U.S. 340 (1979), for further support. Merrill 12 recognized an Exemption 5 privilege for "confidential commercial 13 information," but noted that "[i]t should be obvious that the 14 kind of mutually exclusive relationship between final opinions 15 and statements of policy, on one hand, and predecisional 16 communications, on the other, does not necessarily exist between 17 final statements of policy and other Exemption 5 privileges." 18 Id. at 360 n.23. 19 has been relied upon sufficiently to waive the deliberative- 20 process privilege, that reliance can have the same effect on the 21 attorney-client privilege. 22 it does so here. But La Raza establishes that when a document 411 F.3d at 360-61. 51 We conclude that 1 2 CONCLUSION For the foregoing reasons, the district court's grant 3 of summary judgment for the plaintiff is affirmed with respect to 4 the February 2004 memorandum, and reversed and remanded with 5 respect to the July memoranda with instructions to the district 6 court to enter summary judgment for the defendants as to them. 52